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Updated: May 24, 2025
But before a jury was empanelled the November ballot gave the Prosecution its "coup de grace." P.H. McCarthy was elected Mayor. Charles Fickert defeated Heney for the district attorneyship. An anti-Prosecution government took office. "Big Jim" Gallagher, the Prosecution's leading witness, disappeared. Fickert sought dismissal of the Calhoun case and finally obtained it.
Business in Kilo is no good. Sorry I can't square up, but I leave you the box in my room in part payment. "Prosecution's exhibit No. 1," said the attorney. "Jest what I was tellin' Miss Sally," said the Colonel. "I says to her to keep that paper, and it might come handy. Mebby you heard that me and Miss Sally was what you might call keepin' company?" "That's interesting," said Toole.
What kind of defense could be made by any one who did not profess belief in the innocence of his client? did not affirm it in the most serious and impressive way? did not lie? How would it profit the defense to be conducted by one who would not meet the prosecution's grave asseverations of belief in the prisoner's guilt by equally grave assurances of faith in his innocence?
A ripple like applause swept over the crowded room. With tightening lips the prosecutor turned again toward the third Exeter operator. At the moment the door opened, and he paused as his assistant reappeared, with him two young ladies. The newcomers were operators from the local commercial telegraph office. At once Jack's lawyer, recognizing the prosecution's purpose, was on his feet in protest.
At the proper moment of subsiding feeling, Mr. Moffat again raised his voice: "Gentlemen of the jury, you have seen point after point of the prosecution's case demolished before your eyes by testimony which no one has had the temerity to attempt to controvert. What is left? Mr. Fox will tell you three strong and unassailable facts.
Then on the prosecution's side one native witness is contradicted by all the other witnesses. "Before I close the case for the defence, I would like to refer to the character of the prisoner. In this case I am well aware that character is not a ground of acquittal.
He was tired of it; had declined to be a candidate for the district attorneyship in the Fall. Heney was the Prosecution's only hope. He consented to run; which added to his legal labors the additional tasks of preparing for a campaign. It was not to be wondered at that Heney failed to convict Calhoun. The jury disagreed after many ballots. A new trial was set.
The jury disagreed. The Prosecution's first battle against the "higher-ups" had brought no victory. Ruef was failing Heney as a witness for the people. After months of bargaining the special prosecutor withdrew his tacit offer of immunity. Heney's patience with the wily little Boss, who knew no end of legal subterfuge, was suddenly exhausted.
Doubtless she had left for Dyea and was already some distance down the trail. He breathed easier, for he did not wish her to witness his humiliation, and her presence would have merely added to his embarrassment. The prosecution's case was quickly made, and it was a strong one.
Thus it rarely happens in criminal cases of importance that the district attorney knows what the defence is to be until the defendant himself takes the stand, and, by "waiving further examination" in the police court, the astute criminal attorney may select at his leisure the defence best suited to fit in with and render nugatory the prosecution's evidence.
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